B-173958, OCT 1, 1971, 51 COMP GEN 191

B-173958: Oct 1, 1971

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PAY - ACTIVE DUTY - RESERVISTS - INJURED IN LINE OF DUTY - DISABILITY DETERMINATION AS A CORRECTION OF MILITARY RECORDS PURSUANT TO 10 U.S.C. 1552 IS FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE UNITED STATES. THE CONCLUSION OF THE BOARD FOR CORRECTION OF MILITARY RECORDS FOR THE COAST GUARD THAT A FORMER RESERVE MEMBER WAS NOT FIT FOR DUTY ON NOVEMBER 19. THAT THE NOTICE OF ELIGIBILITY FOR DISABILITY BENEFITS ISSUED ON THAT DATE WHEN HE WAS RELEASED FROM HOSPITALIZATION OCCASIONED BY AN INJURY SUFFERED WHILE PARTICIPATING IN AN OFFICIAL VOLLEY BALL GAME SHOULD NOT HAVE BEEN CANCELLED. THAT HE WAS DISABLED UNTIL DISCHARGED ON APRIL 5. WHEN HE WAS FOUND UNFIT FOR DUTY. HE WAS HOSPITALIZED UNTIL MAY 13.

B-173958, OCT 1, 1971, 51 COMP GEN 191

PAY - ACTIVE DUTY - RESERVISTS - INJURED IN LINE OF DUTY - DISABILITY DETERMINATION AS A CORRECTION OF MILITARY RECORDS PURSUANT TO 10 U.S.C. 1552 IS FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE UNITED STATES, EXCEPT WHEN PROCURED BY FRAUD, THE CONCLUSION OF THE BOARD FOR CORRECTION OF MILITARY RECORDS FOR THE COAST GUARD THAT A FORMER RESERVE MEMBER WAS NOT FIT FOR DUTY ON NOVEMBER 19, 1969; THAT THE NOTICE OF ELIGIBILITY FOR DISABILITY BENEFITS ISSUED ON THAT DATE WHEN HE WAS RELEASED FROM HOSPITALIZATION OCCASIONED BY AN INJURY SUFFERED WHILE PARTICIPATING IN AN OFFICIAL VOLLEY BALL GAME SHOULD NOT HAVE BEEN CANCELLED, EVEN THOUGH HE SUBSEQUENTLY ATTENDED DRILLS, AND THAT HE WAS DISABLED UNTIL DISCHARGED ON APRIL 5, 1971, WHEN HE WAS FOUND UNFIT FOR DUTY, ENTITLES THE FORMER RESERVIST TO PAYMENT OF PAY AND ALLOWANCES, LESS DRILL PAY, FROM NOVEMBER 20, 1969, THROUGH APRIL 5, 1971, THE DATE OF DISCHARGE, COMPUTED FROM APRIL 15, 1970, AT THE INCREASED RATES ESTABLISHED BY EXECUTIVE ORDER 11525, AND FROM JANUARY 1, 1971, TO THE DATE OF DISCHARGE, AT THE RATES ESTABLISHED BY EXECUTIVE ORDER 11577.

TO THE SECRETARY OF TRANSPORTATION, OCTOBER 1, 1971:

THIS REFERS TO LETTER DATED AUGUST 6, 1971, FROM MR. R. H. MILLS, CHIEF, SETTLEMENTS AND RECORDS BRANCH, PAY AND ALLOWANCES DIVISION, UNITED STATES COAST GUARD, IN EFFECT REQUESTING AN ADVANCE DECISION ON THE PROPRIETY OF PAYMENT OF PAY AND ALLOWANCES TO MR. JOHN SOTAK, A FORMER COAST GUARD MEMBER, FOR THE PERIOD FROM NOVEMBER 20, 1969, THROUGH APRIL 5, 1971, DATE OF HIS DISCHARGE FROM THE U.S. COAST GUARD RESERVE.

ON MAY 6, 1969, WHILE PARTICIPATING IN AN OFFICIAL VOLLEYBALL GAME, MR. SOTAK SUFFERED AN INJURY WHICH REQUIRED HOSPITALIZATION AND MEDICAL TREATMENT. HE WAS HOSPITALIZED UNTIL MAY 13, 1969, AND A NOTICE OF ELIGIBILITY FOR DISABILITY BENEFITS WAS ISSUED ON MAY 14, 1969. THIS NOTICE WAS TERMINATED ON NOVEMBER 19, 1969, AND HE RETURNED TO A DRILL STATUS. HE PERFORMED HIS FIRST DRILL ON NOVEMBER 25, 1969, AND CONTINUED TO PERFORM DRILLS ON A WEEKLY BASIS THROUGH JANUARY 27, 1970. HE WAS TRANSFERRED TO THE ACTIVE STATUS POOL ON FEBRUARY 1, 1970.

ON DECEMBER 4, 1970, MR. SOTAK FILED AN APPLICATION WITH THE BOARD FOR CORRECTION OF MILITARY RECORDS FOR THE COAST GUARD REQUESTING, IN SUBSTANCE, THAT THE BOARD CORRECT HIS MILITARY RECORD TO SHOW THAT HE WAS UNFIT FOR DUTY ON NOVEMBER 19, 1969, AND TO REINSTATE HIS NOTICE OF ELIGIBILITY FOR DISABILITY BENEFITS. THE BOARD DETERMINED THAT HE WAS NOT FIT FOR DUTY ON NOVEMBER 19, 1969, THAT HIS NOTICE OF ELIGIBILITY FOR DISABILITY BENEFITS SHOULD NOT HAVE BEEN CANCELLED; THAT IT SHOULD BE RESTORED AS OF NOVEMBER 19, 1969, AND THAT HE BE FOUND UNFIT FOR DUTY TO THE TIME OF HIS DISCHARGE FROM THE COAST GUARD RESERVE. THE DECISION WAS APPROVED BY THE ACTING GENERAL COUNSEL AS DESIGNEE OF THE SECRETARY, DEPARTMENT OF TRANSPORTATION, ON JULY 2, 1971.

IN VIEW OF OUR DECISIONS HOLDING THAT WHERE A MEMBER, DESPITE HIS INJURY, IS ACTUALLY RETURNED TO A RESERVE DUTY STATUS, CONTINUED PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES IS TOO DOUBTFUL TO WARRANT OUR APPROVAL OF PAYMENT, EVEN THOUGH THE DUTY INVOLVED BE OF LIMITED OR RESTRICTED NATURE, MR. MILLS EXPRESSED DOUBT AS TO WHETHER THE FACT OF ACTUAL ATTENDANCE AT DRILLS CAN BE CHANGED TO CREATE ENTITLEMENT TO PAY AND ALLOWANCES AND PRESENTED FOR CONSIDERATION THE FOLLOWING QUESTIONS:

1. IN LIGHT OF THE REFERENCED DECISIONS, MAY THE COMMANDER EIGHTH COAST GUARD DISTRICT'S LETTER 5890 SERIAL 4676/RMB OF 24 NOVEMBER 1969 BE CONSIDERED AS HAVING BEEN RETROSPECTIVELY VOIDED BY THE APPROVED FINDINGS OF THE CORRECTION BOARD'S ACTION (ENCLOSURE 1 TAB 8)?

2. IF THE ANSWER TO QUESTION (1) IS IN THE AFFIRMATIVE, CAN PAYMENT BE MADE TO MR. SOTAK FOR PAY AND ALLOWANCES (LESS PAYMENTS FOR DRILLS) THROUGH 5 APRIL 1971 THE DATE OF HIS DISCHARGE?

3. IN VIEW OF THE DECISION IN 50 COMP. GEN. 99 SHOULD THE ANSWER TO QUESTION (2) BE IN THE AFFIRMATIVE MAY MR. SOTAK'S PAY FOR THE PERIOD 1 JANUARY THROUGH 5 APRIL 1971 BE BASED ON THE INCREASED RATES OF BASIC PAY ESTABLISHED BY EXECUTIVE ORDER 11577 OF 8 JANUARY 1971?

THE PROVISIONS OF LAW RELATING TO THE ENTITLEMENT TO ACTIVE DUTY PAY AND ALLOWANCES AFTER AN ORDERED PERIOD OF ACTIVE DUTY, OR INACTIVE DUTY TRAINING, FOR A MEMBER OF THE COAST GUARD RESERVE DURING A PERIOD OF DISABILITY RESULTING FROM AN INJURY INCURRED IN LINE OF DUTY ARE CONTAINED IN 37 U.S.C. 204. SUBSECTION 204(I) PROVIDES, IN PERTINENT PART, THAT:

A MEMBER OF THE *** COAST GUARD RESERVE IS ENTITLED TO THE PAY AND ALLOWANCES PROVIDED BY LAW OR REGULATION FOR THE MEMBER OF THE *** REGULAR COAST GUARD *** OF CORRESPONDING GRADE AND LENGTH OF SERVICE, UNDER THE SAME CONDITIONS AS THOSE DESCRIBED IN CLAUSES (1) AND (2) OF SUBSECTION (G) OF THIS SECTION.

SUBSECTION (G) PROVIDES FOR SUCH ENTITLEMENT WHENEVER THE MEMBER "IS CALLED OR ORDERED TO ACTIVE DUTY, OR TO PERFORM INACTIVE-DUTY TRAINING, FOR ANY PERIOD OF TIME, AND IS DISABLED IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED."

IN OUR DECISION OF MAY 19, 1964, REPORTED IN 43 COMP. GEN. 733 (1964), WE SAID, ON PAGE 737, THAT:

IT SEEMS REASONABLY CLEAR THAT A RIGHT TO ACTIVE DUTY PAY AND ALLOWANCES UNDER THE ABOVE-CITED PROVISIONS OF LAW WHILE THE MEMBER CONCERNED IS TEMPORARILY DISABLED BY INJURY INCURRED IN LINE OF DUTY, IS BASED UPON PHYSICAL DISABILITY TO PERFORM MILITARY DUTY, NOT HIS NORMAL CIVILIAN PURSUIT, AND THAT THE DETERMINATION AS TO HOW LONG THE DISABILITY CONTINUES IS LEFT TO THE EXERCISE OF A SOUND ADMINISTRATIVE JUDGMENT. IF, DESPITE HIS INJURY, THE SERVICE CONCERNED SHOULD ACTUALLY RETURN HIM TO A LIMITED OR RESTRICTED RESERVE DUTY STATUS WHERE HE WOULD BE SUBJECT TO BEING CALLED UPON TO PERFORM SUCH DUTY AS HIS PHYSICAL CONDITION WOULD PERMIT, WE WOULD REGARD THE CONTINUED PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES IN SUCH CIRCUMSTANCES AS BEING TOO DOUBTFUL TO WARRANT OUR APPROVAL OF SUCH PAYMENT. 37 COMP. GEN. 588. IN EACH CASE, THE SERVICE CONCERNED SHOULD DETERMINE WHEN THE INJURED RESERVIST RECOVERS SUFFICIENTLY TO BE FIT TO PERFORM HIS NORMAL MILITARY DUTIES. IN MAKING THAT DETERMINATION, THE SERVICE SHOULD APPLY THE SAME STANDARDS IT WOULD APPLY IN THE CASE OF A MEMBER OF THE REGULAR SERVICE. ***

THE ABOVE-QUOTED LANGUAGE WAS REFERRED TO IN SEVERAL SUBSEQUENT DECISIONS, NAMELY, 45 COMP. GEN. 54 (1965); 47 COMP. GEN. 531 (1968); 48 COMP. GEN. 1 (1968); AND B-168276, OF DECEMBER 16, 1969. THUS, FOR A NUMBER OF YEARS THE DECISIONS OF THIS OFFICE HAVE VIEWED THE ACTUAL RETURN OF A RESERVE MEMBER TO A RESERVE DUTY STATUS AS THE DETERMINING FACTOR IN ESTABLISHING THE TERMINATION DATE FOR PAY AND ALLOWANCES AUTHORIZED BY SUBSECTIONS (G), (H) AND (I) OF SECTION 204, TITLE 37, U.S.C. IN THE ABSENCE OF CORRECTION OF HIS RECORD THERE WOULD, THEREFORE, BE NO LEGAL BASIS FOR CONTINUING TO PAY MR. SOTAK ACTIVE DUTY PAY AND ALLOWANCES FOR ANY PERIOD SUBSEQUENT TO NOVEMBER 19, 1969.

UNDER THE PROVISIONS OF 10 U.S.C. 1552, THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED IS AUTHORIZED TO CORRECT ANY MILITARY RECORD OF THAT DEPARTMENT WHEN HE CONSIDERS IT NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE. SUCH A CORRECTION AUTHORIZED BY THE STATUTE IS FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE UNITED STATES, EXCEPT WHEN PROCURED BY FRAUD. THUS THE CONCLUSION OF THE CORRECTION BOARD THAT MR. SOTAK WAS NOT FIT FOR DUTY ON NOVEMBER 19, 1969, EVEN THOUGH HE WAS FIT FOR LIMITED RESERVE DUTY AND ACTUALLY ATTENDED DRILLS; THAT HIS NOTICE OF ELIGIBILITY FOR DISABILITY BENEFITS SHOULD NOT HAVE BEEN CANCELED AND SHOULD BE RESTORED AS OF NOVEMBER 19, 1969; THAT HE WAS DISABLED UNTIL HIS DISCHARGE FROM THE COAST GUARD RESERVE, AND THAT AT THE TIME OF HIS DISCHARGE HE WAS FOUND UNFIT FOR DUTY, APPROVED ON BEHALF OF THE SECRETARY OF TRANSPORTATION, IS FINAL AND CONCLUSIVE.

UPON THE CORRECTION OF HIS RECORD, A MEMBER IS ENTITLED UNDER 10 U.S.C. 1552(C) TO ALL PAY WHICH WOULD HAVE BECOME DUE UNDER APPLICABLE PROVISIONS OF LAW ON THE BASIS OF THE FACTS REFLECTED BY THE RECORD AS CORRECTED. HELD IN 34 COMP. GEN. 7 (1954) THAT THE RIGHTS OF A MEMBER WHOSE RECORD HAS BEEN CHANGED BY CORRECTION BOARD ACTION ARE FOR DETERMINATION SOLELY ON THE BASIS OF THE PROPER APPLICATION OF THE STATUTES TO THE FACTS AS SHOWN BY THE CORRECTED RECORD. SEE 40 COMP. GEN. 502, 504 (1961).

THE ACTION OF THE CORRECTION BOARD, AS APPROVED ON BEHALF OF THE SECRETARY OF TRANSPORTATION, ESTABLISHED A FACT WHICH WAS NOT REFLECTED BY THE OFFICIAL RECORDS BEFORE THE CORRECTION WAS MADE, THAT IS, THAT MR. SOTAK WAS NOT FIT FOR MILITARY DUTY ON NOVEMBER 19, 1969, AND REMAINED SO UNFIT UNTIL HIS DISCHARGE. THE RECORDS AS CORRECTED NOW SHOW THAT HE WAS NOT RETURNED TO HIS NORMAL MILITARY DUTY AND HIS ELIGIBILITY FOR DISABILITY BENEFITS CONTINUED UNTIL THE DATE OF HIS DISCHARGE FROM THE COAST GUARD RESERVE. ACCORDINGLY, QUESTIONS 1 AND 2 ARE ANSWERED IN THE AFFIRMATIVE.

IN OUR DECISION OF AUGUST 18, 1970, 50 COMP. GEN. 99, WE HELD THAT UNDER THE RETROACTIVE PROVISIONS OF THE FEDERAL EMPLOYEES SALARY ACT OF 1970, APPROVED APRIL 15, 1970, PUBLIC LAW 91-231, 84 STAT. 195, 5 U.S.C. 5332 NOTE, AND REGULATIONS ISSUED THEREUNDER, A NAVAL RESERVE OFFICER INJURED WHILE ON ACTIVE DUTY FOR TRAINING WHO CONTINUED ON THE BASIS OF DISABILITY TO RECEIVE THE BENEFITS PROVIDED BY 10 U.S.C. 6149(A) AND 37 U.S.C. 204(I) WAS NOT ENTITLED TO A RETROACTIVE INCREASE BECAUSE HE WAS NOT ON ACTIVE DUTY ON THE EFFECTIVE DATE OF THE ACT. THUS, HE WAS ENTITLED TO INCREASED PAY AND ALLOWANCES ONLY FROM APRIL 15, 1970. MR. SOTAK'S CASE IS SQUARELY WITHIN THE RULE OF THAT DECISION AND HE IS ENTITLED TO THE INCREASED RATE OF PAY ESTABLISHED UNDER EXECUTIVE ORDER 11525, DATED APRIL 15, 1970, ONLY FROM APRIL 15, 1970. THE 1970 DECISION HAS NO BEARING ON THE INCREASED RATES OF MONTHLY BASIC PAY FOR MEMBERS OF THE UNIFORMED SERVICES ESTABLISHED BY EXECUTIVE ORDER 11577, DATED JANUARY 8, 1971, EFFECTIVE JANUARY 1, 1971, ISSUED PURSUANT TO THE FEDERAL PAY COMPARABILITY ACT OF 1970, APPROVED JANUARY 8, 1971, PUBLIC LAW 91-656, 84 STAT. 1946, 5 U.S.C. 5301 NOTE. HENCE, QUESTION 3 IS ANSWERED IN THE AFFIRMATIVE.

UPON THE PROPER ADJUSTMENT OF THE PAY OF MR. SOTAK FOR THE PERIOD FROM JANUARY 1 TO APRIL 15, 1970, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.